separation of powers in usa essay

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The first amendment, module 6: separation of powers and federalism.

When crafting the Constitution, one of the central concerns of the Founding generation was how best to control government power. With the new Constitution, the Framers looked to strike an important balance—creating a new national government that was more powerful than the one that came before it while still protecting the American people’s most cherished liberties. They settled on a national government with defined but limited powers. Instead of placing authority in the hands of a single person (like a king), a small group of people (like an aristocracy), or even the whole people (like a direct democracy), the Framers divided power in two ways. At the national level, the Framers divided power between the three branches of government—the legislative branch, the executive branch and the judicial branch. This process of dividing power between different branches of government is called the separation of powers . From there, the Framers further divided power between the national government and the states under a system known as federalism . In this module, students will explore the key functions of the different parts of government and the role that the Constitution plays in controlling government power.

Download all materials for this module as a PDF

Learning Objectives

• Define the separation of powers and explain how this system works.
• Describe federalism, including how it functions within our constitutional system and how it affects our lives.
• Identify where we see the separation of powers in the Constitution and why the Founding generation valued it as an important feature of their new system of government.
• Identify where federalism is in the Constitution and why the Founding generation valued it as an important feature of their new system of government.

6.1 Activity: Separation of Powers and Federalism: Whose job (or check), is it?

• Student Instructions
• Teacher Notes

Purpose When crafting a new Constitution, the framers were concerned about the threats posed by a powerful new national government. To guard against potential abuses of power, the Founding generation divided power.

In this activity, you will explore the separation of powers and federalism.

Process Complete the Activity Guide: Separation of Powers, Checks and Balances, and Federalism Reflection worksheet. Discuss with your group your understanding of the separation of powers, checks and balances, and federalism.

After your discussion, your teacher will lead you through an activity to determine your understanding of separation of powers and checks and balances, in particular. 

Launch Open the discussion by asking students what they know about separation of powers, checks and balances, and federalism. Then, ask them whether there's anything they wonder about those key principles.

Activity Synthesis After students complete their group discussions, lead them through the Activity Guide: Separation of Powers and Federalism: Whose job (or check), is it? document. You may distribute the document or use it to lead class discussion. 

Now that students have a better understanding of the separation of powers, ask students to identify examples of when a branch has the sole power to work alone and when a branch must work with another branch to take action.

Ask the students these follow-up questions:

• Which jobs are standalone jobs of one of the branches of government?
• Which jobs are overlapping?
• Why did the founders separate power between the branches and included connections and overlap between jobs (checks and balances)?

As part of the discussion, connect the principles of the separation of powers, checks and balances, and federalism to the broader theory of our republic: the need to both check abuses of power and create a government that creates policy that serves the common good (by slowing politics down, blocking bad ideas, curbing abuse, promoting deliberation, valuing principled compromise, etc.).

Students should see not only the value of checking government abuse, but also the constructive parts of our complicated system—how it might promote good policy—and also reflect on whether they think that the founders struck the right balance.

To frame this part of the discussion, ask students to reflect on the following questions: 

• How does this system of separating power act as a tool to ensure better outcomes? 
• How does the entire system work together to slow down politics, limit abuses, promote deliberation and compromise, and force us to work together to achieve common purposes (but only when the ideas are consistent with the Constitution and attract broad support)?

6.1 Activity Guide: Separation of Powers, Checks and Balances, and Federalism Reflection

6.1 activity guide: separation of powers and federalism: whose job (or check), is it, 6.2 activity: key terms.

Purpose By continuing to examine the principles of the separation of powers, checks and balances, and federalism, you will engage with key principles that continue to drive our constitutional system today. 

Process Complete the Activity Guide: Key Terms - Separation of Powers, Checks and Balances, and Federalism worksheet to continue the discussion on separation of powers, checks and balances, and federalism.

Launch Information Review with all students the key principles and the definitions. Give examples of each of the criteria in the worksheet: Definition (pre-written), Characteristic (define), Example (define), and Non-example (define) before asking students to start their group work. Break students into groups and allow them time to explore, discuss, and begin to complete the worksheet.

Activity Synthesis At the end of the activity, remind students that they will be exploring this tool throughout the entire module and will use it as a worksheet for the video lesson. Have students share a few ideas and questions from each group. 

Activity Extension (optional) Now that students have a better understanding of these key principles, ask them to find current examples of separation of powers, checks and balances, or federalism in news articles. 

6.2 Activity Guide: Key Terms - Separation of Powers, Checks and Balances, and Federalism

6.3 video activity: separation of powers.

Purpose Your guide, Professor Jeffrey Rosen, will explore the separation of powers, checks and balances, and federalism.

Process Watch the following video about the separation of powers.

Then, complete the Video Reflection: Separation of Powers worksheet.

Identify any areas that are unclear to you or where you would like further explanation. Be prepared to discuss your answers in a group and to ask your teacher any remaining questions.

Launch Give students time to watch the video and answer the questions. 

Activity Synthesis Have students share their responses in small groups and then discuss as a class.

Activity Extension (optional) Now that students have a better understanding of the separation of powers, you could provide a Word Cloud to support students’ word building skills (virtue, power, checks, reserved).

6.3 Video Reflection: Separation of Powers

6.4 activity: branch exploration.

Purpose Separation of powers refers to the Constitution’s system of distributing political power between three branches of government: a legislative branch (Congress), an executive branch (led by a single president), and a judicial branch (headed by a single Supreme Court). In this activity, you will explore each branch in more detail.

Description Review the summary document for each article: 

• Info Brief: Article I - Congress
• Info Brief: Article II - The Presidency
• Info Brief: Article III - The Judiciary

Complete the Activity Guide: Branch Exploration worksheet to further explore your branch. Students should also be encouraged to look at the Constitution’s text itself when completing the activity sheet.

Final Assignment: Work with your group to build a dossier on your assigned branch and present your findings to the class.  Examples of what goes into the dossier:

• Title:  What is the name of the branch?
• Role:  What is the primary role and/or responsibility of the branch in our constitutional system?
• Structure:  How is the branch structured? Where do we find the branch’s structure set out in the Constitution?
• Power : What part of the Constitution defines the powers of the branch?
• Background:  Write a short paragraph on the historical origins of the branch. What did the Founding generation have in mind?
• Key moments: List the major turning points and/or Supreme Court cases about the branch.
• Other information: Share any other vital information about the branch and how it works.

Launch Review each branch of government with the students briefly before splitting them up into three groups.

• The legislative branch—Congress—makes the laws. (We find this branch in Article I ).
• The executive branch—led by a single president—enforces the laws. (We find this branch in Article II ).
• The judicial branch—headed by a single Supreme Court—interprets the laws. (We find this branch in Article III ).

Activity Synthesis Ask students to complete the Activity Guide: Building a Branch Dossier about their branch and present it to their class. Ask students what branch sounds most interesting to them and why. Ask students to examine whether these answers come from their knowledge about the role as spelled out by the Constitution or how the role plays out every day in our government. 

Activity Extension (optional) Create a spider web map (ecosystem map) of the three branches of government. Students can mark a check on a branch and another color for when branches work together. Refer to the  spider web map example.  

6.4 Info Brief: Article I - Congress

6.4 info brief: article ii - the presidency, 6.4 info brief: article iii - the judiciary, 6.4 activity guide: branch exploration, 6.4 activity guide: building a branch dossier, 6.5 activity: philosophical thinking on separation of powers.

Purpose In this activity, you will use primary sources to identify the philosophical background for separation of powers and checks and balances.

Process Choose one of the assigned readings and answer the following questions. 

• What evidence did the author use for the need for separation of powers?
• What are two main arguments advanced by the author in this piece? 
• What is the role of the governed? 

When complete, be ready to share what you have learned with the class. 

• Primary Source: Montesquieu, The Spirit of the Laws (1748)
• Primary Source: John Adams, Thoughts on Government (1776)
• Primary Source: James Madison, Federalist No. 51 (1788)

Complete the Activity Guide: Philosophical Thinking on Separation of Powers worksheet.

Launch Ask students to read and mark up (one or all of) the primary sources. They should then individually answer the questions. Break students into three groups to review their assigned reading(s) and their answers to the questions.

As a class, discuss the connection between Montesquieu’s ideas of separation of powers, Adams’s views, and Madison’s views. 

Activity Synthesis Have students write an answer to the following questions: 

• How do the ideas of separation of powers and checks and balances prevent one group from gaining too much power? 
• What are the benefits of these key principles? (Answer: Prevent tyranny/abuse of power. Slow down politics and promote deliberation/compromise.) 
• Are there any drawbacks? (Answer: The system is slow. Can’t respond to problems as quickly. Sometimes the government can’t take action. Get them thinking about this now.)

Activity Extension (optional) Now that students have a better understanding of the separation of powers and checks and balances, ask students to write a response to one of the authors either agreeing or disagreeing with their argument. 

6.5 Primary Source: Montesquieu, The Spirit of the Laws (1748)

6.5 primary source: john adams, thoughts on government (1776), 6.5 primary source: james madison, federalist no. 51 (1788), 6.5 activity guide: philosophical thinking on separation of powers, 6.6 activity: federalism, it’s in there.

Purpose Federalism is the word used to describe the Constitution’s system of dividing political power between the national government and the states. When we look for federalism in the Constitution, where can we find it? The Constitution itself doesn’t say the word “federalism” anywhere. But it’s in there. It’s everywhere.

In this activity, you will find examples of federalism in the Constitution. 

Process Read the Info Brief: Federalism and then build out the Activity Guide - Federalism in the Constitution chart to explore the concept of federalism as a key principle in the Constitution. 

Launch Review the concept of federalism. Review the definition and big ideas from activity one and the video.  Give students time to use the chart to identify examples of federalism in the Constitution.

Activity Synthesis Ask students to explain why we have a system of federalism. As a group discussion, ask students again, why did the framers embed these ideas of separation of powers, checks and balances, and federalism into the structure of the Constitution? 

Activity Extension (optional) Now that students have a better understanding of federalism, ask them to find current examples of federalism in news articles. Or explore how women won the vote through federalism and the 19th Amendment by exploring The Awakening interactive map. Students can explore this map to discover how women’s suffrage at the state level paved the way for the 19th Amendment. 

6.6 Info Brief: Federalism

6.6 activity guide: federalism in the constitution, 6.7 test your knowledge.

Congratulations for completing the activities in this module! Now it’s time to apply what you have learned about the basic ideas and concepts covered.

Complete the questions in the following quiz to test your knowledge.

This activity will help students determine their overall understanding of module concepts. It is recommended that questions are completed electronically so immediate feedback is provided, but a downloadable copy of the questions (with answer key) is also available.

6.7 Interactive Knowledge Check: Separation of Powers and Federalism

6.7 printable knowledge check: separation of powers and federalism, previous module, module 5: the bill of rights, next module, module 7: the legislative branch: how congress works.

The Constitution grants Congress—our nation’s legislative branch—the power to make laws. The legislative branch is outlined in Article I of the Constitution. The Constitution divides Congress into two houses—the U.S. House of Representatives and the U.S. Senate. The House of Representatives is composed of representatives proportionate to each state’s population. At the same time, the Senate is organized under the principle of equal state representation—with each state, regardless of its population, receiving two Senators. 

In this module, studen...

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Constitutional Issues - Separation of Powers

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two. Even when this system thwarts the public will and paralyzes the processes of government, Americans have rallied to its defense.

At no time in this century was the devotion to that principle more vigorously evoked than in 1937, when Franklin Roosevelt introduced a plan to increase the number of Justices on the Supreme Court. The conflict set off by the President's plan is more understandable when viewed in the historical context of expanding judicial power as well as in the contemporary context of pro- and anti-New Deal politics.

In the early national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in Marbury Madison by declaring an act of Congress unconstitutional, he greatly strengthened the judiciary. Even though the high court exercised this prerogative only one other time prior to the Civil War ( Dred Scott v. Sanford ), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

After the Civil War, the Court entered a phase of judicial activism based on a conservative political outlook that further enhanced its own power. In accepting the view that the 14th amendment should be interpreted to protect corporations, the Court struck down laws that protected workers, such as minimum wage laws and laws prohibiting child labor. Critics of the Court's stand, including Justice Oliver Wendell Holmes, argued that these decisions were not based on the Constitution but upon the laissez-faire theory of economics. By 1937 the Court was widely regarded by the public as an enemy of working people.

This sentiment was exacerbated by the Great Depression. In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional.

FDR remained silent, hoping that the antijudicial public sentiment would continue to grow without his having to enter the fray. He avoided any direct references to the Court in the 1936 election campaign. After his election victory, however, he submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court. Given Roosevelt's record for legislative success, it is interesting to discover why this plan to reconstitute the Court with Justices more favorable to the New Deal backfired.

Franklin Roosevelt and his Attorney General, Homer Cummings, had considered several options. They could have attacked the issue of judicial review head on, as Congress's proposed amendments had sought to do, but they chose not to, perhaps anticipating the public's attachment to the idea of the judiciary as the guardian of the Constitution. Instead, they chose to change the number of Justices on the Court, which had been done six times since 1789. Their plan had a different twist, however, for it proposed adding a justice for every justice over the age of 70 who refused to retire, up to a maximum of 15 total.

This proposal was all the more appealing because Justice Department lawyers had discovered that the very same idea had been proposed by Justice James C. McReynolds, one of the most conservative justices then sitting on the Court, when he had been Wilson's Attorney General in 1913. The administration could not resist the appeal of such irony, and without consulting Congress, the President and his New Deal aides blundered into one of the biggest political miscalculations of their tenure. By masking their true intentions, they created a split within their own party from which they never fully recovered.

It was expected that the Republicans would cry foul, but when the chairman of the House Judiciary Committee, Democrat Hatton Sumners of Texas, announced his opposition, the plan was as good as dead. Further resistance to the plan developed in Congress as the Court began a reversal of its previous conservative course by ruling in favor of such legislation as then National Labor Relations Act and the Social Security Act. Congressmen urged the White House to withdraw the bill, but confident of victory, FDR refused to back down. The cost was the alienation of conservative Democrats and the loss of the fight in Congress.

Letters poured into the White House and the Justice Department both attacking and supporting the President's plan. Many of the letters of support came from ordinary citizens who had worked in industries hurt by the Great Depression. The Worker's Alliance of Kalispell, MT, wrote, "We consider that Recovery has been delayed materially by the dilatory action of the Supreme Court. . . . An immediate curb on the Supreme Court is of utmost importance, then an amendment to put it in its proper place would be well and good." But others, most notably the legal establishment and the press, thought that the Supreme Court was already "in its proper place."

One of the most outspoken members of the press was the Rochester, NY, newspaper publisher, Frank Gannett. Our study document (99K JPEG) is a letter sent by Gannett to the Office of the Solicitor in the Justice Department and then referred to the Attorney General. Like many others in the file, it expresses the concern that the real issue is not judicial reform but the continued expansion of executive power. {A text version of study document is available.}

Even those who trusted Roosevelt, and who believed in what the New Deal was trying to accomplish, were wary. The following excerpt from a telegram to President Roosevelt is typical.

Please watch your step while attempting to curb the powers of the honorable Supreme Court of the United States. Such action may be in order while so able a person as your excellency may remain in the president's chair but please let us look to the future when it might be in order for the citizenship of our great country to look to the Supreme Court for guidance which we might justly require.

This month's document and the others quoted here can be found in the records of the Justice Department, Record Group 60: Correspondence of the Attorney General, case file 235868.

The Document

Read Transcript

National Archives and Records Administration Records of the Justice Department Record Group 60

Article Citation

Gray, Leslie and Wynell Burroughs. "Constitutional Issues: Seperation of Powers." Social Education 51, 1 (January 1987): 28-30.

Separation of Power in the United States Essay

The division of power in the USA is primarily aimed at assuring the balance of power and preventing the dominance of one governmental institution over others. In other words, it is believed to be critical that the power capacity is equally spread within the country, and the minority has the same right to shape the decision making process as the majority. For this reason, there are some exclusively and concurrently held powers.

Among the powers that the Federal Government holds exclusively, there are such important powers as regulating interstate and international trade and making treaties and conducting foreign policy (Hall & Feldmeier, 2016). The exclusive character of the former seems to be reasonable as the foreign policy is supposed to guard the national interests and pursue the single policy. Therefore, sharing this power with the states would lead to confusing results and reduce the efficiency of the foreign policy, in general.

In the meantime, the question of regulating interstate trade is more ambiguous. It might be assumed that sharing this power with the State Government could make the trade more productive and flexible within the country. Thus, the relevant problem has been widely debated. Some analysts presume that an exclusive power of the Federal Government to impose regulations on interstate trade creates a conflicting environment unfavorable for effective performance. It is suggested that states’ participation in trade regulation could be productive in terms of finding timely solutions and managing cooperative relations (Johnson, 2004).

One of the most important powers that the State Government holds exclusively are regulating intrastate businesses and ratifying amendments to the Constitution (Hall & Feldmeier, 2016). The fact that the former power is held exclusively by the State Government is determined by the size of the territory under control. Within such a big country as the USA is, it seems to be reasonable that the State Government should perform the controlling function of the business run beyond its borders. As to the power to ratify amendments, this aspect is more questionable. Thus, the Constitution is supposed to be the document that unites all the states and provides a consistent legislative framework for their activity. Therefore, the question arises whether states should anyhow participate in its shaping. Practice shows that there have been numerous cases when the procedure of ratifying amendments was significantly complicated by the lack of agreement between the states ( Proposed amendments not ratified by the States , 2008). Therefore, there are grounds to assume that sharing this power with the Federal Government will simplify the procedure of implementing changes in the constitution.

Apart from the exclusive powers of the Federal Government and the State Governments, there are also those that are held concurrently. For example, both governments share the power of collecting taxes and establishing courts. It is critical that these powers are held concurrently, as it helps to fulfill the initial aim of power’s division – the assurance of equal authoritative capacities. The tax and the court aspects are one of the most important elements of the governing structure; therefore, it would be risky to supply one of the governments with an exclusive right to exercise these powers. On the one hand, the Federal Government should necessarily participate in decision making in terms of tax and courts. On the other hand, it is convenient that some of the problems might be resolved at the local level.

Reference List

Hall, D.J., & Feldmeier, J (2016). Constitutional Law: Governmental Powers and Individual Freedoms . New York, New York: Pearson Education.

Johnson, C.H. (2004). The Panda’s thumb: the modest and mercantilist original meaning of the commerce clause . Web.

Proposed amendments not ratified by the States . (2008). Web.

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IvyPanda. (2022, April 19). Separation of Power in the United States. https://ivypanda.com/essays/separation-of-power-in-the-united-states/

"Separation of Power in the United States." IvyPanda , 19 Apr. 2022, ivypanda.com/essays/separation-of-power-in-the-united-states/.

IvyPanda . (2022) 'Separation of Power in the United States'. 19 April.

IvyPanda . 2022. "Separation of Power in the United States." April 19, 2022. https://ivypanda.com/essays/separation-of-power-in-the-united-states/.

1. IvyPanda . "Separation of Power in the United States." April 19, 2022. https://ivypanda.com/essays/separation-of-power-in-the-united-states/.

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IvyPanda . "Separation of Power in the United States." April 19, 2022. https://ivypanda.com/essays/separation-of-power-in-the-united-states/.

Home — Essay Samples — Government & Politics — Separation of Powers — Separation Of Powers In The United States

Separation of Powers in The United States

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Published: Mar 18, 2021

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. Separating the powers to legislate, to execute, and to adjudicate into separate government departments was a familiar concept to the Framers. As noted by James Madison in the Federalist No. 47 , political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier. 1 Footnote The Federalist No. 47 (James Madison) . Consequently, when the colonies separated from Great Britain following the American Revolution, the framers of the new state constitutions generally embraced the principle of separation of powers in their charters. 2 Footnote The Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them, at the same time[.]” The Constitution of Virginia of 1776 , reprinted in 10 Sources and Documents of United States Constitutions 52 (William F. Swindler ed., 1979) . See also 5 id. at 96 . Similarly, the Massachusetts Constitution of 1780 provided: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.” The framers of the new state constitutions, however, did not necessarily incorporate systems of checks and balances. Accordingly, violations of the separation of powers doctrine by state legislatures were commonplace prior to the convening of the Constitutional Convention. 3 Footnote The Federalist No. 51 (James Madison) ( “In republican government the legislative authority, necessarily, predominates.” ). See also id. No. 48 . This theme continues to influence the Court’s evaluation of congressional initiatives. See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991) . But compare id. at 286 n.3 (White, J., dissenting). Theory as much as experience guided the Framers in the summer of 1787. 4 Footnote The intellectual history of the Confederation period and the Constitutional Convention is detailed in Gordon S. Wood , The Creation of the American Republic, 1776–1787 (1969) .

In drafting the Constitution, the Framers considered how to order a system of government that provided sufficient power to govern while protecting the liberties of the governed. 5 Footnote See, e.g. , M.J.C. Vile , Constitutionalism and the Separation of Powers (1967) . The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles: the separation of government into three branches: legislative, executive, and judicial; the concept that each branch performs unique and identifiable functions that are appropriate to each branch; and the proscription against any person or group serving in more than one branch simultaneously. 6 Footnote The Federalist No. 47 (James Madison) .

While the Constitution largely effectuated these principles, the Framers’ separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation, 7 Footnote U.S. Const. art. I, § 7 . but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties. 8 Footnote Id. art. II, § 2, cl. 2 . Some critics of the proposed Constitution objected to what they regarded as a curious mixture of government functions and powers. 9 Footnote See, e.g. , The Federalist No. 47 (James Madison) ( “[O]ne of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. . . . The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” ). In response to criticism that the Constitution blurred the powers accorded to the three branches of government, James Madison wrote a series of essays addressing this issue. 10 Footnote Id. Nos. 47–51 (James Madison) .

In the Federalist No. 47 , Madison relied on the theories of Baron de Montesquieu in addressing critics of the new Constitution. 11 Footnote Id. No. 47 (James Madison) . According to Madison, Montesquieu and other political theorists “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,” but rather liberty was endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.” 12 Footnote Id. Madison further reasoned that neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient to protect liberty. 13 Footnote Id. Nos. 47–49 . Instead, to secure liberty from concentrated power, Madison argued, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” 14 Footnote Id. No. 51 . Thus, James Madison famously stated: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 15 Footnote Id.

To achieve the principles articulated by Madison in the Federalist No. 47 , the Constitution features many “checks and balances.” For example, bicameralism reduces legislative predominance, 16 Footnote U.S. Const. art. I, § 1 . while the presidential veto gives the President a means of defending his priorities and preventing congressional overreach. 17 Footnote Id. art. I, § 7 . The Senate’s role in appointments and treaties provides a check on the President. 18 Footnote Id. art. II, § 2, cl. 2 . The courts are assured independence from the political branches through good-behavior tenure and security of compensations, 19 Footnote Id. art. III, § 1 . and, through judicial review, the courts check the other two branches. 20 Footnote Id. ; Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) . The impeachment power gives Congress authority to root out corruption and abuse of power in the other two branches. 21 Footnote U.S. Const. art. I, § 2, cl. 5 ; id. art. I, § 3, cl. 6 . For a more detailed discussion of the separation of powers and checks and balances, see Intro.7.2 Separation of Powers Under the Constitution and Intro.7.1 Overview of Basic Principles Underlying the Constitution.

Separation of Powers

James Madison, Federalist, no. 51, 347--53

To what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to under-take a full developement of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through channels, having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties however, and some additional expence, would attend the execution of it. Some deviations therefore from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

But it is not possible to give to each department an equal power of self defence. In republican government the legislative authority, necessarily, predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative, on the legislature, appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied, by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion, to the several state constitutions, and to the federal constitution, it will be found, that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are moreover two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First . In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.

Second . It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole, very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the union may be formed into more circumscribed confederacies or states, oppressive combinations of a majority will be facilitated, the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member of the government, the only other security, must be proportionally increased. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves: So in the former state, will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that if the state of Rhode Island was separated from the confederacy, and left to itself, the insecurity of rights under the popular form of government within such narrow limits, would be displayed by such reiterated oppressions of factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; and there being thus less danger to a minor from the will of the major party, there must be less pretext also, to provide for the security of the former, by introducing into the government a will not dependent on the latter; or in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle .

Hamilton, Alexander; Madison, James; and Jay, John. The Federalist . Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

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Separation of Powers Supreme Court Cases

The separation of powers is the concept that the executive, legislative, and judicial branches must operate in distinct, clearly defined spheres. The structure of the Constitution reflects the separation of powers. Article I provides power to the legislative branch (Congress), Article II to the executive branch (the President), and Article III to the judicial branch (the Supreme Court).

Closely tied to the separation of powers is the system of checks and balances. To prevent any branch from gaining too much power, the Constitution gives certain powers to each branch that help constrain the powers of the other branches. For example, the President nominates Supreme Court Justices, while the Senate must confirm them. Bills passed by Congress must be presented to the President, who holds the power to veto them. While the President is the commander in chief of the armed forces, Congress holds the power to declare war.

Some of the issues that have implicated separation of powers concerns include the conduct of foreign relations, the appointment and removal of officials, and the delegation of congressional power to administrative agencies. These cases largely focus on conflicts between the legislative and executive branches, although some decisions involving the role of courts also may have separation of powers aspects.

Below is a selection of Supreme Court cases involving the separation of powers, arranged from newest to oldest.

Author: Samuel A. Alito, Jr.

The Constitution prohibits even modest restrictions on the President's power to remove the head of an agency with a single top officer.

Author: John Roberts

The precedents of Humphrey's Executor and Morrison should not be extended to an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from presidential control.

In assessing whether a subpoena directed at the President's personal information is related to and in furtherance of a legitimate task of Congress, courts must take adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President. (The Court continued to list four non-exclusive considerations in this analysis.)

Author: Anthony Kennedy

The President has the exclusive power to grant formal recognition to a foreign sovereign. Congress may not force the President to contradict their prior recognition determination in an official document issued by the Secretary of State.

Author: Stephen Breyer

The Recess Appointments Clause empowers the President to fill any existing vacancy during any Senate recess of sufficient length. The Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.

The President may not be restricted in their ability to remove a principal officer, who is in turn restricted in their ability to remove an inferior officer, when that inferior officer determines the policy and enforces the laws of the United States. Multilevel protection from removal is contrary to Article II's vesting of the executive power in the President.

The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing treaty is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.

Author: Antonin Scalia

Section 109(b) of the Clean Air Act does not permit the EPA Administrator to consider implementation costs in setting NAAQS (national ambient air quality standards). Also, when conferring decision-making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform.

Author: John Paul Stevens

There is no constitutional authorization for the President to amend or repeal an Act of Congress.

Author: Harry Blackmun

Congress did not violate the separation of powers principle by placing the U.S. Sentencing Commission in the judicial branch, requiring federal judges to serve on the Commission and to share their authority with non-judges, or empowering the President to appoint Commission members and to remove them for cause.

Author: William Rehnquist

Congress may place the power to appoint inferior executive officers outside the executive branch. Also, Congress may impose a good cause-type restriction on the President's power to remove an official if this does not interfere with the President's exercise of the executive power and their constitutionally appointed duty to take care that the laws be faithfully executed.

Author: Warren Burger

Under the constitutional principle of separation of powers, Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.

When it was clear that an action by the House of Representatives was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the bicameralism and presentment requirements of Article I of the Constitution.

Long continued executive practice, of which Congress knows and in which it acquiesces, raises a presumption that presidential action has been taken pursuant to Congress' consent.

Author: Per Curiam

Restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment. However, restrictions on independent expenditures in campaigns, limits on expenditures by candidates from their personal or family resources, and limits on total campaign expenditures violated the First Amendment. Also, any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States” and must be appointed in the manner prescribed by the Appointments Clause.

Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.

Author: Robert H. Jackson

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his independent powers, but there is a zone of twilight in which the President and Congress may have concurrent authority, or in which its distribution is uncertain. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

Author: Harlan Fiske Stone

The essentials of the legislative function are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.

Author: George Sutherland

Congressional legislation that is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction that would not be admissible were domestic affairs alone involved.

The authority of Congress in creating quasi-legislative or quasi-judicial agencies to require their officers to act independently of executive control includes the power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. (However, purely executive officers are inherently subject to the exclusive and illimitable power of removal by the President.)

Author: Charles Evans Hughes

Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. Congress may leave to selected instrumentalities the making of subordinate rules within prescribed limits, and the determination of facts to which the policy declared by Congress applies, but it must lay down the policies and establish standards. A law was an unconstitutional delegation of legislative power when it did not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure but instead authorized the making of codes to prescribe them and set up no standards for that legislative undertaking.

Congress may leave to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. However, this should not obscure the limitations of the authority to delegate if the constitutional system is to be maintained. An attempted delegation is plainly void when the power sought to be delegated is legislative power, yet nowhere in the statute has Congress declared or indicated any policy or standard to guide or limit the President when acting under such delegation.

Author: William Howard Taft

The President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.

Complete independence and separation between the three branches are not attained or intended.

Author: Salmon Portland Chase

By providing that an acceptance of a pardon without a disclaimer shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of rights conferred by it, Congress invaded the powers both of the judicial and of the executive departments of the government.

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Everson V. Board of Education: a Landmark Decision on the Separation of Church and State

This essay about the landmark 1947 Supreme Court case Everson v. Board of Education explores its significant impact on the interpretation of the Establishment Clause in the U.S. Constitution. It details the case’s origins, arguments, and the Supreme Court’s decision, which introduced the concept of a “wall of separation” between church and state. The case is presented as a crucial precedent in American legal history, shaping subsequent rulings on religious freedom and government involvement with religion.

How it works

In the tapestry of American jurisprudence, few legal battles have woven threads as intricate and enduring as those in Everson v. Board of Education. This landmark case, etched into the annals of history in 1947 by the United States Supreme Court, cast a luminous spotlight on the delicate interplay between religion and government in the fabric of the nation’s constitutional framework.

At its core, Everson delved into a seemingly mundane matter: the reimbursement of transportation expenses for students attending parochial schools.

Yet, beneath this mundane surface lay a profound constitutional conundrum: did such a practice infringe upon the hallowed grounds of the Establishment Clause, which sanctify the separation of church and state?

The genesis of the case lay in a New Jersey statute authorizing local school boards to defray the costs of ferrying students to their respective schools, be they public or private, secular or religious. However, Archibald S. Alexander, a vigilant denizen of Ewing Township, New Jersey, took umbrage with this policy and launched a legal salvo against the Board of Education, igniting a legal conflagration that would reverberate across the nation.

As the case ascended the judicial ladder, it eventually reached the zenith of legal scrutiny—the United States Supreme Court. Here, beneath the hallowed dome of justice, the finest legal minds grappled with the weighty issues at hand. In a momentous opinion, Justice Hugo Black unfurled the standard that would shape the legal landscape for decades to come.

Justice Black’s pen, dipped in the ink of constitutional fidelity, inscribed a resolute interpretation of the Establishment Clause. He invoked the metaphorical imagery of a “wall of separation” between church and state, erected by the Framers to safeguard against the pernicious entanglement of religious and governmental affairs. While acknowledging the historical tapestry of religion in the American fabric, Justice Black emphasized the imperative of governmental impartiality: the state must neither elevate nor denigrate any particular religious creed.

With surgical precision, Justice Black dissected the New Jersey statute, revealing its constitutional infirmity. The reimbursement of transportation costs, he argued, amounted to state endorsement and subsidization of religious education—a clear transgression of the Establishment Clause’s hallowed boundaries.

Critically, Justice Black’s opinion repudiated the notion that the Establishment Clause merely proscribed the establishment of an official state religion. Instead, he unveiled a broader principle of governmental disentanglement from religious affairs, prohibiting any action that would advance or inhibit religion, regardless of denominational persuasion.

However, dissenting voices punctuated the judicial symphony. Justice Wiley Rutledge, in a poignant dissent, contended that the majority’s interpretation of the Establishment Clause was excessively restrictive. He posited that the Framers intended to preclude the establishment of a state-sponsored church, not to excise religion from the public square altogether. According to Justice Rutledge, the reimbursement of transportation costs constituted a secular benefit that incidentally aided religious education—an exercise of state authority within constitutional bounds.

Yet, despite the discordant notes of dissent, Everson v. Board of Education etched an indelible mark upon the legal canvas of religious freedom. It heralded a paradigm shift in the Court’s interpretation of the Establishment Clause, reaffirming the imperative of governmental neutrality towards religion. Subsequent jurisprudence would further refine these principles, navigating the labyrinthine contours of prayer in public schools, government funding for religious activities, and the display of religious symbols on public terrain.

Today, the echoes of Everson resound in the corridors of power, infusing debates over the proper delineation of church and state with a sense of historical gravitas. Its legacy endures as a lodestar guiding the ship of state through the choppy waters of religious liberty. While interpretations of the Establishment Clause may wax and wane, the core principles articulated in Everson continue to illuminate the path towards a more perfect union—a union wherein the flame of religious freedom burns bright, undimmed by the shadows of governmental intrusion.

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The Real Danger if Trump Is Re-elected

By Jacob Heilbrunn

Mr. Heilbrunn is the editor of The National Interest, a nonresident senior fellow at the Atlantic Council and the author, most recently, of “America Last.”

Donald Trump may be regularly depicted as an impetuous toddler in chief, but he appears to possess genuine convictions about international relations. Ever since he gave an interview to Playboy magazine in 1990 decrying Mikhail Gorbachev for failing to hold the Soviet empire together (“not a firm enough hand”) and praising the Chinese Communist leadership for crushing the student uprising at Tiananmen Square (“they were vicious, they were horrible, but they put it down with strength”), Mr. Trump has extolled authoritarian leaders as possessing the right stuff, while he has dismissed democratic ones as weak and feckless.

This impulse is not a new phenomenon for the United States; it dates back to World War I and World War II, when leading American conservatives praised foreign autocrats such as Kaiser Wilhelm II, Adolf Hitler, Benito Mussolini and Francisco Franco as their ideological comrades in arms. Until now, however, no modern president has lauded autocracy as a model for America.

During his four years in office, Mr. Trump blustered about alliances and praised foreign dictators but never actually upended America’s foreign policy. That could change in a second Trump administration. The former president is poised to adopt a radical program centered on constructive engagement with foreign strongmen and hostility toward democratic allies; it would include abandoning NATO. It would convert America from a dominant economic and military power into what Mr. Trump purports to abhor — a global loser.

To understand why Mr. Trump’s approach might well differ from the one he took in his initial term, it’s helpful to look at the foreign policy advisers who are being talked about as potential members of a new Trump administration. They can be divided into two camps, which might be called Restorationists and Revisionists.

Restorationists are establishment Republicans such as former Secretary of State Mike Pompeo and the former national security adviser Robert C. O’Brien who want to go back in time — specifically, to Ronald Reagan’s foreign policy hawkishness and staunch internationalism, which they believe led straight to the fall of the Berlin Wall and victory in the Cold War. During the Trump presidency, they worked overtime to maneuver Mr. Trump in this direction, pushing him to adopt tough stances toward Iran, Russia and China, while maintaining ties to traditional allies in Asia and Europe.

Now, in a variety of interviews, speeches and books, they have been sketching out their vision for a second Trump term — one that would shore up America’s alliances, pursue peace through strength and confront Iran, Russia and China — while camouflaging their crusading Reaganite views in a thin veneer of Trumpian nationalism.

Revisionists, by contrast, are “America First” advocates who espouse a much harder-edged approach and, more often than not, want to go it alone.

Organizations such as the Heritage Foundation and the America First Policy Institute, the two main think tanks vying to staff the next Trump administration, have been vetting potential appointees to establish a government in waiting. As Keith Kellogg, a retired lieutenant general and former Trump national security official, observed in his 2021 memoir, “War by Other Means,” “Our problem was that we did not always know who our enemies were; in some cases, they were our own political appointees.” Mr. Trump himself has loudly complained about many of the advisers he appointed, such as John Bolton.

The conservative activists around him wish to install purists who will preach America First precepts, not least the dogma that America’s security isn’t tied to Europe’s because, as Mr. Trump recently put it, “an ocean” separates the territories.

The Revisionists don’t place as much value on our membership in NATO and are generally ardent proponents of a longstanding dream on the right of a Fortress America that can strike unilaterally whenever and wherever it pleases, unencumbered by nettlesome international alliances and organizations.

Take Mr. Trump’s former ambassador to Germany and acting national intelligence director, Richard Grenell. He has opposed Sweden and Finland’s joining NATO while supporting far-right populists in Serbia, Guatemala and elsewhere. Then there is Russ Vought. A former Trump budget director who might serve as the White House chief of staff, Mr. Vought has decried American aid to Ukraine and stated that he would reassess “the old idea of NATO’s collective defense.”

Mr. Kellogg, who might serve as defense secretary under Mr. Trump, is not a staunch opponent of sending aid to Ukraine, but even he has suggested that we should be prepared to use the threat of cutting it off to push the country into peace talks with Moscow — a recipe for pre-emptive surrender.

Former Trump Defense Department official Elbridge Colby, who is widely seen as a top contender to become national security adviser if Mr. Trump wins re-election, typifies the radicalism of the Revisionist camp. Mr. Colby has insisted that confronting China requires slashing support to Ukraine, and he recently lambasted Britain’s foreign secretary, David Cameron, for “lecturing” Republican politicians about the imperative to assist Kyiv, deeming it “foreign interference.”

Mr. Trump’s own hostility to sending aid to Ukraine suggests that he would most likely be receptive to a deal with President Vladimir Putin of Russia, allowing him to operate freely in Central and Eastern Europe — in the name of stability and peace. By the same token, for all his bluff and bombast about the China threat, Mr. Trump, unlike President Biden, has never indicated that he would stand by Taiwan were China to invade.

He appears to view American alliances with South Korea and Japan with skepticism, if not outright hostility. Less than a year after the Japanese prime minister, Fumio Kishida, met with Mr. Biden in April to announce new security agreements, Mr. Trump could simply decide that he has no intention of honoring America’s commitments abroad.

Rupturing America’s alliances would lead to arms races and nuclear proliferation in Asia and Europe. Nationalists like Hungary’s prime minister, Viktor Orban, and Serbia’s president, Aleksandar Vucic, who is known as a “little Putin,” would be emboldened to strengthen their ties with the Kremlin and undermine European security.

And the domestic consequences could be severe. Many of Mr. Trump’s economic advisers, including the former trade chief Robert Lighthizer (a leading candidate to be the Treasury secretary under Mr. Trump), are apparently intent on pursuing the Great Depression redux — waging trade wars with Europe and Asia. They’re floating a host of other risky measures, including curbing the independence of the Federal Reserve, weakening the dollar to try to increase exports, and imposing high tariffs on goods from China and Europe.

While Mr. Biden’s new tariffs on China aggressively target the solar industry and electric cars, Mr. Trump wants to decouple the world’s two largest economies from each other. These measures would weaken the confidence of foreign investors and fuel higher inflation.

With Ukraine and Russia at war, China threatening its neighbors and the Middle East aflame, warnings of a new world war already abound. Add in Mr. Trump’s strongman predilections — purging the State Department, the C.I.A. and the F.B.I. as redoubts of the deep state, cozying up to Mr. Putin, threatening China and reportedly sending assassination squads into Mexico to target drug kingpins — and the odds of a calamity rise.

Would the damage be irreversible? Chancellor Otto von Bismarck of Germany supposedly remarked that “God has a special providence for fools, drunkards and the United States of America.” But Mr. Trump’s return might test even the Almighty’s patience.

Mr. Trump’s economic and foreign policy nationalism would subvert the preponderance of power that America has enjoyed since 1945 and that he has promised to bolster. It has been threatened from without but never from within. As he vows to upend America’s relations with the rest of the globe, the danger is not that Mr. Trump would fail to live up to his principles. It’s that he would.

Jacob Heilbrunn ( @JacobHeilbrunn ) is the editor of The National Interest, a nonresident senior fellow at the Atlantic Council and the author, most recently, of “America Last.”

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Texas AG Ken Paxton can be disciplined over effort to overturn 2020 presidential election

Attorney General Ken Paxton remains subject to a disciplinary complaint over his effort to cast doubt on the outcome of the 2020 presidential election and overturn its results in four states, a Dallas appeals court ruled Thursday.

Seeking to dismiss the punitive administrative action brought by the Commission for Lawyer Discipline, a standing committee of the State Bar of Texas, Paxton's appeal — based on the argument that he acted in an official capacity and is therefore not subject to reprimand for filing an election lawsuit before the U.S. Supreme Court — was rejected by a three-justice panel of the 5th Court of Appeals in Dallas.

"Every attorney admitted to practice in Texas, including those representing a government agency, is subject to the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure, both promulgated by the Texas Supreme Court," the majority opinion issued by Justices Erin Nowell and Nancy Kennedy said.

In rejecting Paxton's appeal, the court made the distinction that the commission's case is targeting Paxton not for filing the lawsuit in his role as attorney general, but for presenting a case as a licensed attorney that was dishonest and failed to meet judicial standards.

"Subjecting Paxton to disciplinary proceedings does not violate separation of powers; immunizing him does," the justices wrote.

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Known as Texas v. Pennsylvania, the case sought to delay the certification of the 2020 presidential election results in Pennsylvania, Michigan, Georgia and Wisconsin. Dismissed as moot by the country's high court, Paxton in the aftermath faced a handful of complaints for filing the suit, leading the commission in 2022 to move for disciplinary action.

More: Why 18 attorneys general are backing Ken Paxton aide in professional misconduct complaint

Some of those concerns were outlined again in the majority opinion issued Thursday and included allegations that Paxton misrepresented the sway of unregistered voters, a glitch that affected voting machines, that "illegal votes" had affected the election outcome and that state actors "unconstitutionally revised their state’s election statutes."

In previous court filings the commission has argued that Paxton "made several representations that were dishonest, as they were not supported by any charge, indictment, judicial finding, or credible or admissible evidence."

Paxton's office in a statement Friday said it will appeal the ruling, referencing an amicus brief recently submitted by 18 attorneys general that invoked constitutional separation of powers concerns in a parallel conduct complaint case against Paxton's top deputy , first assistant attorney general Brent Webster.

"As in that case, we will appeal this ruling and we have full confidence the Supreme Court of Texas will not allow false claims by the State Bar and partisan political revenge to affect professional licensure of the state’s lawyers,” said Paige Willey, director of communications for the attorney general's office.

The State Bar of Texas and its Commission for Lawyer Discipline declined to comment on the ruling Friday.

Depending on a possible future trial on the matter, Paxton could face punishments ranging from a private or public reprimand to the revocation of his license to practice law in Texas. However, in Texas, an elected attorney general is not required to be a licensed member of the State Bar.

The coalition of attorneys general, in its friend-of-the-court brief filed last Friday, argued that the work of Paxton's office is beyond the State Bar commission's purview and is protected by a constitutional separation of powers. Further, allowing disciplinary action against Webster to move forward would be a step in violating the discretion of the attorney general's office to pursue legal actions, the attorneys general wrote.

"Any attempt by the judiciary — or by entities subject to the judiciary’s control — to restrict the Attorney General’s discretionary choices interferes with the exercise of the Attorney General’s constitutional authority and violates fundamental separation-of-powers principles," the coalition's brief states.

That stance, submitted in Webster's case, which sits before the Texas Supreme Court, appears to be offline from the 5th Circuit's interpretation in Paxton's proceeding.

"The Commission’s suit does not seek to impose liability against the governmental unit; it seeks disciplinary measures against Paxton individually as a licensed attorney for alleged misrepresentations made to the Supreme Court of the United States," the justices wrote.

In dissenting from the majority opinion, Justice Emily Miskel agreed with Paxton, saying she would have rejected the commission's motion to dismiss Paxton's appeal, overturned a previous trial court ruling and thrown out the commission's complaint entirely.

"As discussed above, the Commission has not shown that the attorney general’s actions were unlawful or without authority," Miskel wrote. "The Commission is attempting to interfere with the attorney general’s exercise of his discretionary authority in carrying out his constitutionally assigned powers."